Groch v Groch, 2022 ABKB 840

Court of King’s Bench of Alberta Citation: Groch v Groch, 2022 ABKB 840 Date: 20221213 Docket: 4801 163790 Registry: Calgary Between: Jeanette Anne Groch Applicant - and - Mark Steven Groch Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice M.A. Marion _______________________________________________________ I. Introduction [ 1 ] The applicant, Jeannette Anne Groch ( Ms. Groch ) applies for an order to compel the respondent, Mark Steven Groch ( Mr.

Groch ), to provide her with financial disclosure as contemplated in items 1-16 in a Notice to Disclose / Application ( Notice to Disclose ) served on Mr. Groch in November 2020. She seeks that information backdated from the day the Notice to Disclose was filed. Mr. Groch opposes the Application on the basis that Ms. Groch is improperly attempting to revisit or vary a binding Judicial Dispute Resolution ( JDR ) order, or that the information is otherwise irrelevant. [ 2 ] For the reasons set out below, the Application is granted in part. II. Background [ 3 ] The parties were married in 1999 and separated in 2014.

They had four children ( Children ). Their divorce proceedings were

case managed by Justice Dario and included numerous case management attendances and disputes. The issues between the parties included parenting, spousal support, child support and matrimonial property division. They had numerous disputes along the way respecting financial disclosure. [ 4 ] In December 2018, the parties were scheduled for trial, however it was converted to a binding JDR. The parties executed a Binding Judicial Dispute Resolution Agreement and attended a binding JDR with Justice deWit ( Binding JDR ). The parties were unable to resolve their disputes.

Justice deWit reserved his decision and, on January 18, 2019, issued a 17-page Binding JDR Order ( JDR Order ). [ 5 ] The JDR Order addressed parenting, spousal support, child support and matrimonial property division. Among other things, it provided for recalculation under the Alberta Child Support Recalculation Program, and ongoing annual financial disclosure. [ 6 ] On November 13, 2020, to effect a recalculation to lower his child support payments, Mr.

Groch provided an Income Questionnaire to the Recalculation Program for the 2019 tax year that disclosed he was a director of Grock Enterprises Ltd ( GEL ), and that his involvement with GEL was “consulting” and “director meetings”. On November 25, 2020, the Recalculation Program advised that it would not be recalculating child support for 2021 due to his disclosed involvement with GEL, unless Ms. Groch consented. The Recalculation Program confirmed this to Ms. Groch in March 2021. Ms. Groch did not consent to recalculation under the Recalculation Program.

The Recalculation Program closed its file. [ 7 ] On November 23, 2020, Ms. Groch filed the Notice to Disclose in Form FL-17 ( Form ), pursuant to rule 12.41(3) of the Alberta Rules of Court , Alta Reg 124/2010 , which sought disclosure of items 1 to 16 referred to in the Form. Mr. Groch does not object to providing items 1-9 and asserts that he has responded and provided disclosure of those items.

However, he has objected to and refused to provide items 10-16 from the Form ( Items 10-16 ). [ 8 ] On March 19, 2021, the matter came before Justice Grosse in Family Docket Court, and was permitted to proceed by way of a one-hour special application in respect of the disclosure dispute. [ 9 ] Ms. Groch’s April 1, 2021 Application seeks an order compelling Mr. Groch to provide the disclosure sought in the Notice to Disclose, plus costs. [ 10 ] There are four affidavits before me (an April 1, 2021 Ms. Groch Affidavit, an April 16, 2021 Mr. Groch Affidavit, an April 23, 2021 Ms.

Groch Reply Affidavit, and an August 10, 2022 Ms. Groch Supplementary Affidavit). There are also two transcripts of questioning conducted by Ms. Groch’s counsel on Mr. Groch’s April 16, 2021 Affidavit. Ms. Groch was not questioned on her affidavits. [ 11 ] Ms. Groch argues that Mr. Groch should be compelled to disclose Items 10-16 because, among other things, they are relevant to whether the Court should impute income on Mr. Groch. She asserts that

(1) Mr. Groch has been intentionally underemployed since separation;

(2) Mr. Groch is or has been diverting his income through a GEL loan account;

(3) Mr. Groch’s income has dropped significantly since separation; and

(4) Mr. Groch’s lifestyle greatly exceeds his income and therefore he has other sources of income he is not reporting. [ 12 ] Mr. Groch argues that

(1) Ms. Groch’s request for Items 10-16 is an attempt to revisit or vary the division of property and raise issues that were resolved by the JDR Order; (2) disclosure of property is irrelevant to the setting of child support; and (3) the request is a fishing expedition. Mr. Groch invited the Court to review the Court file on this matter to support his position that “producing such documentation only opens up further litigation and abuse of the Courts.” [ 13 ] Following oral argument, I wrote to the parties to get further submissions on the impact, if any, of

section 9 of the Federal Child Support Guidelines , SOR/97-175 ( Guidelines ), which had not been addressed in argument, and the impact, if any, of the Court of Appeal decision in Peters v Atchooay , 2022 ABCA 347 , which was released subsequent to argument. III. Issues [ 14 ] The issue on the Application is whether Mr. Groch should be required to provide the disclosure sought in the Notice to Disclose. [ 15 ] I note that in her Concise Letter of argument, Ms. Groch seeks, in the alternative, that the Court impute income to Mr. Groch. Further, in her response to my request for further submissions, Ms.

Groch appeared to be arguing the merits of a child support variation application and the merits of a recalculation of child support. Ms. Groch also seeks an order providing disclosure beyond that requested in the Notice of Disclose, including back-dated disclosure to capture time periods not contemplated in the Notice to Disclose. None of these matters are before me – they were not part of what was permitted by Justice Grosse in the Family Docket Endorsement and were not part of the Application. The only issue before me is the question of whether Mr.

Groch should be ordered to provide the disclosure in the Notice to Disclose. [ 16 ] The purpose of Family Docket Court, as noted on the Alberta Court of King’s Bench website, is to: ...allow the Court to better assess what services and court processes will best serve a family’s needs and to better manage family law matters coming into the Court.

The focus will be on reducing lead times and referring parties to processes that will reduce the amount of conflict to which any children are being exposed. [1] [ 17 ] It is important for the efficient and effective functioning of the Family Docket Court triage system, and procedural fairness, that parties who have a Family Docket Court endorsement do not attempt to expand the issues that have been triaged and directed to further processes by Justices sitting in Family Docket Court. While attempts to expand issues may be understandable given court-

scheduling lead times, they may take the other party and the court by surprise, they will often not have a proper record, and they may undermine the court’s purposes noted above by potentially wasting precious party and court resources on issues that are not before the court and will not be addressed. [ 18 ] In this case, the issue before me is simply one of disclosure and I will not spend time on the expanded substantive request that I should impute income to Mr. Groch. If Ms. Groch wishes to pursue that she must start that process through Family Docket Court. IV. Analysis A. Rule 12.41 and Disclosure in Child Support Proceedings [ 19 ] The child support system, including variations under

section 17 of the Divorce Act , depends upon adequate, accurate and timely financial disclosure; it is the linchpin on which fair child support depends and the relevant legal tests must encourage the timely provision of necessary information: Colucci v Colucci , 2021 SCC 24 at para 48 . As a result, frank disclosure is critical and the payor’s duty to disclose information is a corollary of the legal obligation to pay support: Colucci at paras 50 and 52 ; Michel v Graydon , 2020 SCC 24 at paras 33 and 117 ; Brear v Brear , 2019 ABCA 419 at paras 19-24 .

The exercise of judicial discretion must encourage appropriate financial disclosure: Colucci at para 53 . [ 20 ] Having said all of this, given the inherently invasive nature of financial disclosure, courts must also engage in a balancing of interests. Disclosure obligations are not endless. Legislatures and courts place appropriate limits on disclosure obligations to ensure disclosure requests are proportionate, are not frivolous, and are not used for collateral purposes, to revisit issues that have already been resolved, to go on fishing expeditions, or to seek irrelevant or immaterial information.

See, for example: Auer v Auer , 2015 ABQB 67 at paras 12-13 ; Mustard v Brache , 2006 ABCA 265 at paras 10-12 . [ 21 ] There are several ways for disclosure to be obtained in child support matters: Roseberry v Roseberry , 2015 ABQB 75 at para 65 , as endorsed in Cunningham v Seveny , 2017 ABCA 4 .

One such way in Alberta is a Notice to Disclose under rule 12.41 – this is one of the mechanisms courts and the Legislature have implemented to incentivize and require regular ongoing disclosure of updated information by the payor, in several types of proceedings, including Divorce Act proceedings: Roseberry at para 65 ; Colucci at para 52 ; rules 12.41(2) and 12.38(1)(a)-(h).

Proceeding under rule 12.41 is often the preferred approach before an application to vary child support is filed - it assists the party seeking the information to determine whether an application to vary is appropriate: Roseberry at para 40 ; Zdyb v Zdyb , 2017 ABQB 44 at para 26 . Thus, it can promote efficiency as many matters can likely be resolved upon simple disclosure and agreement, rather than invoking other formal court processes. Unfortunately, this is not one of those cases, and so I must consider the scope of rule 12.41. [ 22 ] Rule 12.41 has limits.

Under rule 12.41(3), a party may only request documents that are relevant and material to the proceedings. On what is relevant and material, guidance can be taken from rule 5.2: Auer at para 15 . Rule 5.2 provides that information is relevant and material only if it could reasonably be expected to (

a) significantly help determine one or more of the issues raised in the pleadings, or (

b) ascertain evidence that could reasonably be expected to significantly help determine one or more issues raised in the pleadings. [ 23 ] In the context of child support under the Divorce Act , therefore, prior to a child support order under

section 15.1(1) or (2) of the Divorce Act , to be relevant and material the requested information must be reasonably expected to significantly help determine (or ascertain evidence to reasonably help determine) the amount of child support payable in accordance with the applicable guidelines ( Divorce Act ,

section 15.1(3) ). Where there is already a child support order under

section 15.1(1) of the Divorce Act , to be relevant and material the information requested must be reasonably expected to significantly help determine, or ascertain evidence that could reasonably be expected to significantly help determine, whether child support should be varied, rescinded or suspended ( Divorce Act , section 17(1) ). In the case of variation, this will include whether a change of circumstances has occurred as contemplated in sections 17(4) of the Divorce Act and

section 14 of the Guidelines . Where there is evidence of change of circumstances, relevant and material the information will also include information that is reasonably expected to significantly help determine, or ascertain evidence that could reasonably be expected to help determine, the amount of child support payable. [ 24 ] Rules 12.41(4) and (5) place further limits on disclosure.

Where there has been a final determination in proceedings related to child support, the Notice to Disclose procedure may only be used once per year without the requirement for a variation application to be commenced and, further, only the documents referred to in items 1 to 9 on the Form may be requested unless the court orders otherwise.

On child support variation applications, it has been held that Items 10-16 should only be ordered after a final order if there is some compelling reason to do so, which might include a compelling reason to question the disclosure as it relates to income: Zdyb at paras 53- 54 . [ 25 ] In my view, the purpose of rule 12.41(5) is to ensure a payor is not automatically required to provide information which, in many cases, will not be relevant and material to a variation application or, in the event there is a change of circumstances, the determination of support.

The issues between the parties will likely be significantly narrowed following the final determination of support. The requirement for a court order provides for judicial gatekeeping through judicial discretion to avoid re-litigation or irrelevant, immaterial or disproportionate information requests. The rule places the onus on the applicant to support a request with an application and an evidentiary foundation.

In my view, the test under rule 12.41(5) is whether the requested information is proportionate, relevant and material to the remaining issues in the proceedings following the final determination of child support. Therefore, I do not interpret Zdyb as reading into rule 12.41(5) an infallible test based on whether there are “compelling reasons” to order Items 10-16, unless a compelling reason is defined as being that there is evidence that the requested disclosure is proportionate, relevant and material to the remaining issues in the proceeding following the final determination. [ 26 ] The

interpretation of the judicial discretion in rule 12.41(5) must also be exercised in light of the guidance provided by the Supreme Court of Canada in Colucci , noted above, which encourages appropriate financial disclosure. Further, the Guidelines are to be

interpreted purposively and are intended to establish a fair standard of support for children that ensures they will continue to benefit from the financial means of both parents after separation: Ripulone v Smith , 2018 ABCA 167 at para 9 ; Brear at para 19 . B. The Effect of the JDR Order [ 27 ] The JDR Order followed a binding JDR process.

Binding JDR’s are frequently used in Alberta and were initiated by lawyers who wanted to bring finality to disputes by having their clients agree to accept the JDR judge’s opinion should they be unable to negotiate a settlement: JW Abernethy Management & Consulting Ltd v 705589 Alberta Ltd and Trillium Homes Ltd , 2005 ABCA 103 at para 12 . They have been endorsed by the Court of Appeal and typically provide that the decision by the JDR judge is final and binding: JW Abernethy ; Keeder v AlGendy, 2020 ABCA 420 at para 17 . [ 28 ] In this case, the Binding JDR replaced a scheduled 5-day trial.

The Binding Judicial Dispute Resolution Agreement provided, among other things: 1. This matter will be resolved by binding judicial dispute resolution instead of by a trial. 2. In the event that the parties do not reach an agreement to resolve the matter, the Justice will make a determination, which will be final and binding upon all parties. 3. There is no appeal from an agreement reached or determination made by the Justice as a result of the binding judicial dispute resolution. [ 29 ] The Binding JDR decision was then reflected in a court order. The JDR Order stated, in its

preamble, that it is “intended to be a full and final determination of all issues between the parties related to: (

i) retroactive spousal support for the period July 1, 2014 to December 31, 2018; (ii) retroactive

section 3 and

section 9 child support for the period July 1, 2014 to December 31, 2017; (iii) retroactive

section 7 expenses for the period July 1, 2014 to December 31, 2017; and (iv) division of matrimonial property and debt”. [ 30 ] In my view, the JDR Order was a “final determination” of child support (including retroactive child support) up to a certain point, and set go-forward child support, all as contemplated by rule 12.41(4). Therefore, Ms. Groch requires a court order under rule 12.41(5) to require disclosure of Items 10-16. [ 31 ] I agree with Mr. Groch that a significant amount of Ms.

Groch’s effort in this Application appears to be to rehash issues that were in play at the time of, and resolved, by the JDR Order. That is not appropriate. [ 32 ] Among other things, the JDR Order provided that: (

a) no income was imputed for either party for the years 2014-2018 inclusive (JDR Order

preamble); (

b) the parties have provided adequate disclosure to one another, including in relation to GEL (JDR Order

preamble); (

c) there shall be no matrimonial property adjustment between the parties for or in relation to GEL, as well as another corporation and the Groch Family Trust (JDR Order, paragraph 62); (

d) for the years 2014-2017, the JDR Order set the parties’ final guideline incomes for 2014-2017, determined no retroactive

section 3 or

section 9 child support was payable, and provided that neither party could seek to review

section 3 or

section 9 child support for this period (JDR Order, paragraphs 33-38); (

e) for 2018, the JDR Order provided estimated guideline incomes for Mr. Groch and Ms. Groch, respectively. These guideline incomes were not final but neither party was permitted to seek a review or recalculation “without demonstrating a material change of circumstances unless they have provided the other party with the financial disclosure set out in paragraph 74 of this Order for the 2018 taxation year” (JDR Order, paragraphs 36); (

f) for ongoing child support commencing January 1, 2019, the JDR Order provided that Mr. Groch would pay

section 9 child support, based on his and Ms. Groch’s estimated guideline incomes, for four children (JDR Order, paragraphs 41-42); (

g) child support could be recalculated by the Recalculation Program as contemplated by

section 55.12 of the Family Law Act , SA 2003 c F-4.5 and

section 1.1 (

a) of the Child Support Recalculation Program Regulation , AR 287/2009 (JDR Order, paragraphs 47- 48); and (

h) annual disclosure was to be provided by June 30 each year. Neither party was required to provide any further disclosure for any period prior to 2018. Ms. Groch was not entitled to any further disclosure from or in relation to certain of Mr. Groch’s family’s corporations, or the Groch Family Trust, “regarding any of the matters dealt with in this Court action” (JDR Order, paragraphs 74-76). [ 33 ] Based on the JDR Order, it is not open for Ms.

Groch to seek disclosure which goes to the issues of matrimonial property division or child support from 2014 to 2017. [ 34 ] However, it was and is potentially open for Ms. Groch to seek disclosure in respect of the issue of whether child support should be varied in respect of child support from 2018 onward – those issues were expressly left open by the JDR Order. It is also potentially open for Ms. Groch, in the event there is a change of circumstances, to seek disclosure in respect of determining appropriate child support. There may be questions as to whether, or for what purpose, Ms.

Groch is entitled, in a future application, to rely on pre- JDR Order facts in respect of post-JDR Order child support, including questions of res judicata or issue estoppel in the context of binding JDRs: RLD v TLD , 2022 ABQB 20 at para 15 ; Luft v Taylor, Zinkhofer & Conway , 2016 ABQB 182 at paras 82-98 , varied 2017 ABCA 228 , leave to appeal refused [2017] SCCA No 397. However, those issues were not canvassed before me and I find that it would be premature and unnecessary for me to attempt to resolve those potential questions in a vacuum at this preliminary disclosure

application stage. [ 35 ] The question is whether Ms. Groch has discharged her onus to establish that Items 10-16 are proportionate, relevant and material to the remaining issues in the divorce proceedings in respect of child support, following the JDR Order, such that an order under rule 12.41(5) is appropriate. C. Are Items 10-16 Proportionate, Relevant and Material? [ 36 ] I can deal first with items 10 and 16 of the Notice to Disclose. [ 37 ] Disclosure of item 10 is not relevant and material, as there is clear and uncontradicted evidence that Mr.

Groch is no longer involved in the Groch Family Trust or any other trust. Further, that item would likely be sufficiently covered under item 14 if disclosed. [ 38 ] Item 16 of the Notice to Disclose relates to claimed exemptions in matrimonial property division. This has been finally determined and accordingly it is not relevant to the remaining proceedings and Mr. Groch does not need to provide item 16 disclosure. [ 39 ] However, the other requested items cannot be so readily disregarded.

They must be considered: (1) in the context of a potential variation application; and (2) if there is evidence of a change of circumstances, in the context of the potential calculation of child support payable. 1.

Are Items 10-16 Proportionate, Relevant and Material to a Potential Child Support Variation Application? [ 40 ] As the question of child support from 2018 and thereafter is potentially open to variation, the first question is whether the requested items 11-15 are proportionate, relevant and material to a potential variation application. [ 41 ] Where there has been a final determination of child support in divorce proceedings, and a Notice to Disclose under rule 12.41 is employed before a variation application is even filed, which is expressly permitted under the Rules , the determination of proportionality, relevance and materiality, and whether an order should be granted under rule 12.41(5), should be grounded in section 17(1) of the Divorce Act , and the test for variation set out in section 17(4) of the Divorce Act and

section 14 of the Guidelines . [ 42 ] Section 17(4) of the Divorce Act provides: 17

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [ 43 ]

Section 14 of the Guidelines provides: Circumstances for variation 14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (

c) in the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act , enacted by

section 2 of

chapter 1 of the Statutes of Canada, (1997). [ 44 ] In this case, the JDR Order made a final parenting decision which provided for shared custody or parenting based on a rotating week-on-week-off

schedule (JDR Order, paragraph 15), and that child support was calculated in the JDR Order pursuant to

section 9 of the Guidelines (JDR Order, paragraphs 41-42). There is no evidence or indication that the parties’ parenting regime has been varied since the JDR Order, and it has been confirmed to me that at least one of the children remains in a shared parenting situation. [ 45 ] It is generally accepted that, in a shared parenting situation,

section 14 (

b) of the Guidelines applies to determine whether a change of circumstances has occurred because a child support order in a shared parenting situation “does not include a determination made in accordance with a table”: Gannon v Gannon , 2014 NSSC 113 at paras 6-8 ; Perron v Hlushko , 2015 ABQB 595 at para 6 ; Walker v Walker , 2016 ABQB 181 at paras 12-13 . Therefore, the issue on a variation application will include “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”: Guidelines ,

section 14 (b). [ 46 ] A change in income or financial means or circumstances of the payor can constitute a change in circumstances, although the change must be material or significant, and be continuous, real, and not one of choice: Peters at para 118 ; Colucci at para 61 . [ 47 ] In Leskun v Leskun , 2006 SCC 25 , the Supreme Court of Canada held at paras 26-34 that “means” includes “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits...”: see also OC v MVSG , 2022 BCCA 140 at para 61 ; Bowes v Bowes , 2022 NLCA 5 at para 106 (citing Greenglass v Greenglass , 2010 ONCA 675 at para 41 ).

Although Leskun , in the context of spousal support, the same would apply to child support: McCaffrey v Dalla Longa , 2008 ABQB 183 at para 76 . For example, the parties’ net worth must be considered, including the disparity in assets and indebtedness of the parents: Contino v Leonelli-Contino , 2005 SCC 63 at paras 132 , 145 and 147; Borrett v Borrett , 2006

BCSC 711 at para 68 . [ 48 ] As these cases show, some of the wording in

section 14 (

b) of the Guidelines is identical to the wording of

section 9 (

c) of the Guidelines .

Section 9 of the Guidelines provides: Shared parenting time 9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared parenting time arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 49 ] In my view, the

interpretation of

section 9, and in particular 9(c), of the Guidelines is of assistance in determining what information is proportionate, relevant and material to a change in the condition, means, needs or other circumstances in

section 14 (

b) of the Guidelines . [ 50 ] A determination of child support when

section 9 is engaged involves the key principles as outlined by the Supreme Court of Canada in Contino , as further summarized by the Alberta Court of Appeal in MacDonald v Brodoff , 2020 ABCA 246 at para 12 and Destine v Cloutier , 2022 ABCA 331 at para 29 . As stated in MacDonald at para 12 : • The language of s 9 is imperative.

The courts must determine child support in accordance with all three factors; • No one factor should prevail, but the weight to be given to each factor depends on the particular facts of the case; • There is no presumption that the Guidelines Table amount, or the set-off amount calculated under the Tables will be awarded. Similarly, there is no presumption that something other than the set-off amount should be awarded; • The analysis is necessarily contextual, so a sound evidentiary foundation, including the parties’ budgets and actual expenses of both parents, is critical to the court’s analysis.

Courts cannot and should not make assumptions about the parties’ situation, and courts should demand information relating to s 9(

b) and (

c) when the evidence filed is deficient; • The analysis under s 9 reflects a stated objective of the Guidelines : to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; • A critical inquiry is whether the children experience a difference in the standard of living as they move between the two households, as one of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households; • The goal under s 9(

b) is to apportion actual expenses between the parents in accordance with their respective incomes; • In shared parenting arrangements, the court has great discretion when assessing the three factors. In particular, the court has full discretion under s 9(

c) to consider “other circumstances”. [ 51 ] MacDonald and Contino mandate that courts consider net income and cash flow related information, including the budgets and “actual expenses” of the parties, and that courts cannot make assumptions about the circumstances of the parties. In my view, it is plainly appropriate for Mr. Groch to be required to provide disclosure of items 11 to 13, and the “income” portion of item 14, all of which all go directly to these issues. This is confirmed by the fact that Mr.

Groch’s evidence in response to this Application included evidence about his current lifestyle and evidence about his monthly expenses. Ms. Groch is entitled to disclosure, including to test Mr. Groch’s evidence. [ 52 ] Mr. Groch points to the fact that some of Items 10-16 do not go to income, but are more relevant to disclosure of property, which he says is irrelevant to determining child support. Mr.

Groch’s argument seem to be predicated on an assumption that his child support obligations are based only on a perfunctory application of his reported Line 150 income and the resulting Table amounts. [ 53 ] It is true that there is a significant difference between disclosure related to income and disclosure related to assets or liabilities, that income disclosure is relevant to child support, and that asset disclosure is usually relevant to property division: Zdyb at para 10 .

However, in my view, as noted above the legislative framework and Supreme Court of Canada decisions confirm that the assessment of the parties’ conditions, means, needs and other circumstances also involves a consideration of property-related information, including capital assets, liabilities and net worth, all of which can impact the standard of living. [ 54 ] In the circumstances, the remaining elements of item 14 (assets and liabilities), and item 15, are proportionate, relevant and material in this case. 2.

Are Items 10-16 Proportionate, Relevant and Material to Calculating Child Support Payable? [ 55 ] In this case, an order for disclosure is bolstered by the fact that Mr. Groch has effectively acknowledged there has been a change of circumstances given his attempt to reduce his monthly child support obligation due to a reduction in his income. This means that, if necessary, information proportionate, relevant, material to determining child support under

section 9 of the Guidelines , and in particular both parties’ income under

section 9 (a) , is also appropriate for disclosure. [ 56 ] In this regard, Ms. Groch argues that income should be imputed on Mr. Groch, for various reasons. While it is not for Ms.

Groch to re-hash the timeframe dealt with in the JDR Order, imputation could potentially be engaged for 2019 and beyond. [ 57 ] Imputation of income can arise in an initial application for child support or on a variation application: Peters at para 62 . Any question of imputation should be addressed as part of the calculation of the Table amounts under

section 9 (a): Peters at para 61 . [ 58 ] The test for imputation under section 19(1) (

a) of the Guidelines in Alberta has now been revisited by the Court of Appeal in Peters , and summarized as follows at para 92: The following is a non-exhaustive list of principles to guide the determination of whether to impute income under s 19(1)(a): 1. General Duty to Work . There is a duty to seek employment where a parent is healthy and can work. A parent’s limited work experience or job skills do not justify a failure to pursue lower skilled employment or employment in which the necessary skills can be learned on the job.

While this may mean a job at the lower end of the wage scale, parents cannot refuse to take reasonable steps to support their children simply because they cannot obtain interesting or highly paid employment. Nor can a high-earning or highly skilled parent refuse employment indefinitely by holding out for employment commensurate with their skills and previous level of earning, job title or seniority. 2. Earning Capacity Used to Assess Reasonableness . When determining whether to impute income on the basis of under- employment or unemployment, a court must consider what is reasonable in the circumstances.

The starting point is the payor’s earning capacity, which is the objective measure by which the reasonableness of the parent’s decision or conduct is assessed. Earning capacity is determined based on factors like age, education, experience, skills, and health of the payor, along with availability of work, the freedom to relocate, and other obligations. 3. Discretion . Income will not be imputed where a parent’s decision to earn less than the maximum they are capable of making is found to be reasonable. Nor is there a presumption that a career choice resulting in a reduction in income is unreasonable. 4.

Obligation to Support Children is the Overarching Goal . The reasons for under-employment or unemployment must be objectively scrutinized. A parent is required to act in a manner reflective of his or her obligations and cannot be excused from support obligations in furtherance of unrealistic, unproductive or non-remunerative career aspirations. Persistence in unremunerative employment or repeated education initiatives may also entitle the court to impute income. Parental self-fulfillment is a consideration but does not trump child support requirements. 5. Agreements Contextualize Reasonableness .

The parties’ pre-separation agreements or social contracts have some weight in determining Guidelines income, but they are not determinative. The parenting arrangement, and the payor’s involvement or lack of involvement with the children, the length or time the arrangement has been in place, and the ages of the children may be considered in assessing the reasonableness of the payor’s under-employment or unemployment. 6. Reasonableness Is Not Fixed in Time .

The payor’s history of paying child support and providing financial disclosure are objective measures by which to assess the reasonableness of the payor’s employment decision or conduct. What is reasonable (or unreasonable) is determined at one point in time and will not necessarily remain static for the entire time the children are owed support. 7. The Ultimate Onus Rests on the Party Opposing Imputation .

Assuming the financial disclosure requirements have been met, the onus is on the party opposing imputation to prove on a balance of probabilities: 1) that the under-employment or unemployment was not voluntary, that is, not due to their own decision or conduct; or, 2) that the under-employment or unemployment is as a result of one of the listed exceptions in s 19(1)(a). If neither circumstance applies, that party must establish on a balance of probabilities that their under- employment or unemployment is reasonable, having regard to all the existing circumstances.

However, where it is an initial application, the person seeking an imputation of income under s 19(1)(

a) has a preliminary onus to establish some basis for the imputation sought. Either way, each stage of the analysis requires evidence that is as objective as possible. Bare assertions will not suffice. [ 59 ] In addition to section 19(1) (

a) of the Guidelines , a payor’s lifestyle often will be relevant to whether a Court may impute income under

section 19 of the Guidelines : Simpson v Bettenson , 2014 ABCA 21 at para 12 ; Bak v Dobell , 2007 ONCA 304 at para 41 . Further, the receipt of financial support from a spouse’s parents in the forms of unusual gifts or other benefits can be relevant in imputing income, depending on a number of factors such as the (

i) regularity of the gifts; (ii) duration of their receipt; (iii) whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle; (iv) the circumstances of the gifts that earmark them as exceptional; (

v) whether the gifts do more than provide a basic standard of living; (vi) the income generated by the gifts in proportion to the payor’s entire income; (vii) whether they are paid to support an adult child through a crisis or period of disability; (viii) whether the gifts are likely to continue; and (ix) the true purpose and nature of the gifts: Bak at para 75 ; Hartley v Del Pero , 2017 ABQB 1 at paras 121-129 ; Kretschmer v Terringo , 2012 ABCA 345 at para 13 ; NR v SR , 2019 ABQB 776 at para 20 ; Russell v Ullett Russell , 2021 ABQB 769 at para 65 ; Almeida v Almeida , 2012 ONSC 4074 at paras 12-13 . [ 60 ] If gifts take on the appearance of a long-term subsidy as if the spouse was a beneficiary of income or benefits from an unwritten trust, they may potentially be imputed as income: Malkov v Stovichek-Malkov , 2017 ONSC 6822 at paras 69-73 .

In family matters, advances from a parent to an adult child, even if they are described as loans, may be characterized as gifts: Mancini v Phelan , 2012 ABQB 536 at paras 173-174 ; EPJ v APE , 2010 BCSC 1121 at paras 46-70 ; DLM v JAM , 2008 NBCA 2 at paras 13-24 . [ 61 ] Further, in some circumstances, loans provided on favourable terms, or which are not expected to be paid back, or are not binding obligations, may possibly lead to imputation of income, see Burke v Burke , 2017 ONSC 4046 at paras 279-286 and the cases therein and the discussion in Seaton v Zheng , 2013 ONSC 4469 at paras 10-41 . [ 62 ] There may be other relevant issues engaged in the calculation of child support under sections 16 - 20 of the Guidelines , but I need not go any further at this stage.

[ 63 ] In this case, Mr. Groch swore an affidavit in response to respond to portions of Ms. Groch’s affidavit which he believed were relevant and material to Ms. Groch’s Application.

His affidavit, and the questioning on it, included evidence that was relevant to the periods post-2018, including, for example: (1) a denial that his parents’ investments are the backbone of his wealth; (2) denying that he continues to have a separate account with GEL; (3) confirming he has been a director of GEL from 2018 to 2020, and provided consulting to GEL, but that his involvement was minimal and was unpaid; (4) he was not self-employed, but was employed by ADT and then his employment was terminated in 2021;

(5) GEL was involved in a property development in Calgary, which was not yet earning income, that he hoped to co-manage the property in the future and be paid to do so, and that he attended the site on a frequent basis to meet with the construction manager and to ask questions, but was not paid to do so; (6) that he supported his lifestyle by receiving gifts or borrowing substantial funds from his parents to pay his monthly shortfall (there is no clear obligation of repayment in the evidence before me); (7) that he uses a family credit card, and a business Costco card, to pay for expenses; and (8) his tax filings are accurate in respect of his income. [ 64 ] In my view, at least some of this evidence is relevant and material to whether there has been a change in circumstances as required by

section 14(

b) of the Guidelines and, also, to the determination of child support pursuant to

section 9 , including, for example, in respect of the calculation of Mr. Groch’s Table amount, whether any income should be imputed on him (including through gifts or loans), the value of his services provided to GEL, and the needs, means and other circumstances of Mr. Groch and the Children. [ 65 ] As this matter is only at the disclosure stage and is not a determination of any such issues on the merits, I should not and need not go further.

In my view, it is sufficient that in all of the circumstances, I believe there is enough evidence to conclude that items 11-15 are proportionate, relevant and material, and that it is appropriate for Ms. Groch to be able to test Mr. Groch’s post-2017 evidence, including so she can consider whether to file a variation application. The JDR Order does not preclude her from doing so. This is further support for granting Ms. Groch an order for items 11-15 under rule 12.41(5). V.

Conclusion [ 66 ] I hasten to add that I make no comments on the merits of any future variation application, any future determination of child support if one is conducted, or which party may be favoured by such steps if they take place. I highlight and emphasize to the parties that any future proceedings are not to be an adventure in revisiting what was finally decided in the JDR Order. Ms. Groch must ground any future process within the limits of issues that have not already been decided, as noted above. [ 67 ] I believe that Ms.

Groch’s failure to clearly anchor her request to post-2017 matters, her repetition of arguments that have been considered and dismissed by Justice deWit in the JDR Order, together with the lengthy history of this matter, has contributed to Mr. Groch’s extreme reluctance to provide further disclosure. In my view, his concern is well-founded. However, Ms. Groch’s approach and the past history of the matter does not necessarily mean her request has no merit. If she persists in attempts to revisit matters that she cannot revisit, this can be dealt with in due course by the court. For his part, Mr.

Groch cannot ignore or avoid the procedures that are in place which are designed to ensure that the Children receive appropriate child support for the time-periods not determined by the JDR Order. [ 68 ] Ms. Groch is granted an order pursuant to rule 12.41(5) in respect of items 11-15 of the Notice to Disclose. Mr.

Groch is directed to provide the disclosure requested in items 1-9 (to the extent he has not already done so), and items 11-15 of the Notice to Disclose, within 30 days of this decision. [ 69 ] If the parties cannot agree on the costs of this Application within 30 days of this decision, they may make written submissions to me in writing not exceeding 5 pages (excluding authorities). Heard on the 16 th day of August, 2022. Dated at the City of Calgary, Alberta this 13 th day of December, 2022. M.A. Marion J.C.K.B.A. Appearances: Amanda Ovaici for the Applicant David M. Taylor for the Respondent